Are Cruiselines Liable for Malpractice?

[C 2 C]

Fla. Supreme Court to decide whether cruise lines liable for malpractice at sea

 

Read on:

 

http://www.orlandosentinel.com/news/local/state/sfl-zcarlisle17jul17,0,4958046.story?page=2&coll=orl-home-headlines

[jaxon41]

"In briefs to the Florida Supreme Court, the cruise lines say that increased liability could hurt Florida's economy. And they say allowing malpractice suits only in Florida will create confusion for a global maritime business."

 

HUH? It's carnival that has contract language which requires all suits to be brought in Florida, and now it argues this will create confusion in a global maritime business? Docs should be required to carry malpractice insurance if the ship is primarily for US passengers, and that malpractice insurance should be written to indemnify the ship/employer. End of discussion.

[Liat]

(a) Doctors everywhere are very often independent contractors. This is true of most physicians in private practice in the US and elsewhere. They are NOT normally employees of the hospital where they may be performing surgery, rendering E.R. care etc. Therefore the hospital is not liable for the doctor's negligence if he leaves a clamp inside you during surgery and sews you up.

The hospital might be liable for a nurse's negligence in not counting instruments, but that is a case by case determination .

(b) Therefore, if a cruise line signs up a doctor as an independent contractor. it is not by that fact alone, normally liable for his medical malpractice. The basic reason is that vicarious liability, that is, liability for the negligent acts of another, can only follow the right to control those acts, and a cruise line has no right or ability to control the medical judgment and medical acts of a licensed physician. [There can be some factual circumstances where there might be an exception, but this would be extremely rare, and we are talking normal liability and "normal" malpractice here.]

© Hospitals usually, and cruise lines could; require that any physician carry malpractice insurance as a condition of being allowed to use the medical facilities provided. For the limits on the benefits of this in a cruise situation, see (d and f) below.

(d) Many cruise doctors are foreign nationals. So even if a doctor carried, by cruise line direction or on his (her) own; the insurance policy would not confer jurisdiction on a US court to render a judgment against him. And the insurance carrier has no obligation to pay its money in the absence of a legally binding judgment against its insured. Insurance companies are not known for charity in their payments on claims.

(e)This should not worry anyone too much since the standard of medical care in Western Europe, where many of these doctors come from, is in a number of respects higher than that provided in the good ol', medically second rate, USA.

(f) But, as foreign nationals, in foreign registry ships; acting outside the USA in international waters or in foreign countries for the most part; such doctors would not be subject to the tort (negligence liability) jurisdiction of a US court. And since passengers form no contractual relationship with a ship's doctor (who is not an employee of the cruise line), simply by booking a cruise; there can be no contractual basis for a lawsuit against the doctor either.

(g) How about requiring liability insurance for cruise lines? As a matter of fact most major US corporations do NOT carry liability insurance. They are self-insurers since that is usually cheaper for a big company. There is no law requiring such insurance in most cases. Certain industries, especially motor carriers, are required to show either proof of financial responsibility or insurance; but that is enforced by laws requiring licenses to carry people or property on state highways.

(h) Since virtually all cruise lines are foreign companies, there would be little way to enforce an insurance requirement unless the U.S. Congress, the only body with a semblence of jursidictional authority, chose to adopt a law barring foreing vessels from docking in US ports without proof of insurance. This is not going to happen in the absence of some showing of true national interest, a showing which will not be met by in isolated medical malpractice case or two.

(i) The mere filing of a lawsuit, and the ruling of a court on a motion to dismiss does not show that there is such danger to cruise ship passengers that barring an industry such as this from the US for lack of insurance is needed. The cruise companies doing business here are usually finacially solvent, and the addition of insurance would not add much, if anything, to passenger's protection.

 

Perhaps there is room for further dicussion.

 

How about that; Arno? You KNEW I was long-winded!